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BARS TO MATRIMONIAL RELIEF[1]

QUESTION BANK

Q.1. On what grounds court can refuse matrimonial relief?

Q.2. State the different bars to matrimonial relief.

SHORT NOTES.

1. Doctrine of Strict proof.
2.    Taking advantage of one’s own wrong or disability.
3. Accessory.
4. Connivance.
5. Condonation.
6. Collusion.

SYNOPSIS

1. INTRODUCTION.
2. BARS TO MATRIMONIAL RELIEF.
3. Doctrine of strict proof.
4. Taking advantage of one’s own wrong or disability.
5. Accessory.
6. Connivance.
7. Condonation.
8. Collusion.
9. Improper or unnecessary delay.
10. Residuary clause/ No other bar.

 I.       INTRODUCTION.

                     We have so far discussed various forms of matrimonial relief such as divorce, nullity of marriage, judicial separation or restitution of conjugal rights. These remedies are granted on the different fault grounds of the other spouse. We have also explicitly discussed the grounds of fault and which remedy is granted. However, on some grounds, the court can refuse the matrimonial relief. These grounds are called ‘Bars to matrimonial relief’[2].

                    These grounds exist in almost all personal laws (except under Muslim Law). Most of these bars are universally applicable to all forms of relief. However, some are applied to particular forms of relief. We will discuss them one by one-

II.      BARS TO MATRIMONIAL RELIEF[3].

                     Following are the bars of matrimonial relief, namely-

1. Doctrine of strict proof[4].

                    The doctrine of strict proof is the doctrine relating to the evidence of proving a plaintiff’s case. It is the rule relating to burden[5] and standard of proof. In matrimonial petitions, the required standard is ‘strict proof’. In other words, the petitioner must prove his case ‘beyond reasonable doubt’ under criminal prosecution. In matrimonial relief, the petitioner must prove grounds beyond a reasonable doubt. However,

In Dastane v. Dastane[6].

Chandrachud J observed that the “standard of proof need not be of beyond all reasonable doubts; the balance of probabilities may prove guilt”.

2. Taking advantage of one’s own wrong or disability[7].

                    The bar of taking advantage of one’s wrong, or disability is that if the petitioner’s spouse is directly or indirectly responsible for the respondent spouse’s wrong, the petition cannot be granted. In other words, if the respondent spouse’s guilt is the outcome of some wrong or disability of the petitioner spouse, the latter cannot be allowed to take advantage of it. For example, the restitution of conjugal rights cannot be granted to the husband, who treats his wife cruelly. Likewise, the husband cannot get a divorce on the grounds of his wife’s adultery if his own adultery or cruelty has contributed to her adultery. In short, this remedy is based on the important maxim of the ‘Court of Equity’, that ‘he who seeks equity must do equity (or come with clean hands before the court)’. This bar applies to all matrimonial causes under the Hindu Marriage Act, except to a petitioner for marriage annulment on the grounds of incapacity to consent. This remedy is also available under the Indian Divorce Act.

3. Accessory[8].

                     ‘Accessory’ is a term of criminal law. It implies active participation by the petitioner’s spouse in the crime of the respondent’s spouse. In other words, an accessory is the person ‘guilty associate’ in a crime, i.e., the respondent spouse commits the crime with the help of the petitioner spouse. Thus, if a husband solicits people to have intercourse with his wife or keeps a watch while his wife is having sex with a third person, he is an accessory.         Under the Hindu Marriage Act, the Special Marriage Act, and the Indian Divorce Act, ‘being accessory’ is the bar only if a petition is filed on the ground of respondent ‘adultery’. However, under the Parsi Marriage and Divorce Act, it is the general bar in any suit for any matrimonial cause.

4. Connivance[9].

                    ‘Accessory’ and ‘connivance’ are of the same type. However, in an ‘accessory’, there is the active participation of one spouse in the guilt of the other. In ‘connivance’, no active participation exists, but express or implied consent always exists. In ‘connivance’, ‘corrupt intention’ exists but not an active partition. Thus, if the wife proposes to make money through illicit intercourse, and the husband consents to the same (express consent), he does the act of ‘connivance’ even though he actively does not participate in soliciting clients. Similarly, if, in order to provide an opportunity for the wife to have sexual intercourse with her friend, the husband withdraws himself from that place, it is an act of ‘connivance’ by implied consent.

                    Under the Hindu Marriage Act, Special Marriage Act and the Indian Divorce Act, ‘connivance’ is a bar to the offence of ‘adultery’ alone. Whereas, under the Parsi Marriage and Divorce Act, ‘connivance’ is a general bar for all reliefs.

5. Condonation[10].

                    ‘Condonation’ is the forgiveness and reinstatement of a guilty spouse by an innocent spouse. In other words, ‘Condonation’ is the reinstatement of a spouse who has committed a matrimonial offence in his or her former matrimonial position.

                     ‘Forgiveness’ here means ‘waiver of the right by the innocent party to take divorce or any other matrimonial proceedings and an indication that he has overlooked the offence. ‘Reinstatement’ means ‘restoration of the status quo ante (i.e. the status before the commission of the matrimonial offence).

                    Under the Hindu Marriage Act and the Special Marriage Act, ‘Condonation’ applies to the matrimonial offences of adultery and cruelty. Under the Indian Divorce Act, it applies only to adultery. However, condonation is a general bar to all matrimonial offences under the Parsi Marriage Act.

6. Collusion[11].

                    ‘Collusion’ is an agreement, arrangement or understanding (express or implied), between the parties (or their agents), whereby matrimonial relief is sought to be obtained by deceiving the court, by misrepresentation, exaggeration or suppression of facts or by fabricating evidence, (where no ground or no sufficient ground exists for the matrimonial relief sought).

                    The burden of proof that there is no collusion lies with the petitioner. The court must also ensure that the petition is not filed with collusion.

Illustration.

If after an agreement between the husband and wife to seek divorce, by creating false grounds of divorce (because there was no ground existing among them which would justify divorce), the husband took a woman to the hotel, registered himself and the woman as husband and wife, booked a room in the hotel, and stayed there with her for the night. The next day, he left the hotel and paid the bill for himself and his so-called wife. The wife collected that evidence and filed a petition on the grounds of her husband’s adultery. It was a case of collusion.

                    Under the Hindu Marriage Act, ‘collusion’ is a general bar to all matrimonial reliefs except the declaration of ‘nullity of marriage. However, under the Special Marriage Act and the Parsi Marriage and Divorce Act, ‘collusion’ is the general bar to all matrimonial reliefs. Under the Indian Divorce Act, ‘collusion’ is a bar to the relief of dissolution of marriage.

                    However, collusion cannot be a bar to a divorce by mutual consent.

7. Improper or unnecessary delay[12].

                    Though the Indian Limitation Act does not apply to petitions under the matrimonial statutes, it is the rule of equity that ‘delay defeats equity. Therefore, the bar of unreasonable delay applies to those cases where a definite limitation period is not laid down. However, the limitation period is specifically laid down in some matrimonial cases. These reliefs are petitions of nullity on premarital pregnancy or the consent for marriage was obtained by fraud or force.

                    Improper or unreasonable delay in filing a matrimonial petition is a bar to all matrimonial petitions under the Hindu Marriage Act, the Special Marriage Act, and the Parsi Marriage and Divorce Act. However, under the Indian Divorce Act, it is a bar only to divorce.

                    The burden of proof that there is no improper delay in filing a petition lies on the petitioner.

In Tobias v. Tobias[13]

Facts- the wife filed the petition for dissolution of marriage after 26 years of marriage. The reason for the condonation of delay was that she had two minor daughters and one son. Now, they have grown and settled. She now wants to get rid of her husband.

Held- The Court condoned the delay of 26 years on the above-stated ground of interest of minor children.

8. Residuary clause/ No other bar[14].

                    The residuary clause under the Hindu Marriage Act, the Special Marriage Act, and the Parsi Marriage and Divorce Act states that there should be no legal bar refusing the petition other than the above-mentioned. However, no such residuary clause exists under the Indian Divorce Act. In other words, the court can refuse matrimonial relief only on the abovementioned grounds and not on any new ground.

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[1] वैवाहिक उपायातील अडथळे [वैवाहिक राहत के लिए बार]

[2] वैवाहिक उपायांना अडथळा  [वैवाहिक राहत]

[3] वैवाहिक उपायांना अडथळे

[4] भक्कम पुराव्याचे तत्व [सख्त सबूत का सिद्धांत]

[5] बंधन [बोझ से संबंधित नियम]

[6] AIR 1975 SC 1534

[7] स्वतःच्या चुकांचा गैरफायदा घेणे [अपनों की गलती या अपंगता का फायदा उठाना]

[8] मदत/दृश्कृत्यातील साक्षीदार  [सहायक]

[9] कानाडोळा करणे/दुर्लक्ष करणे [मिलीभगत]

[10] मुभा [माफ़ी]

[11] रसहमती  [आपसी साँठ – गाँठ]

[12] अयोग्य उशीर [अनुचित या अनावश्यक विलम्ब]

[13] AIR 1968 Cal. 133.

[14] इतर अडथळे [कोई और बार नहीं]